How past marijuana related convictions can affect Legal Permanent Residents of the United States.

By February 11, 2021Immigration

I am a Legal Permanent Resident living in the US for 10 years. Last year I was convicted of a marijuana related offense. Will this conviction affect my green card status?

Marijuana is a controlled substance under federal law which means that any conviction of a drug related law in any state that includes the drug marijuana potentially places you at risk of losing your green card status by being placed in removal proceedings after your conviction where a judge can decide to take your green card away and deport you from the US.

I heard that if I were at risk of deportation that there is an available waiver that can forgive my past marijuana conviction.

There are essentially two waivers available. If your conviction was for for possession of 30 grams or less of marijuana there is an automatic waiver that will forgive the conviction under immigration law not exposing you to potentially losing your green card. A conviction for any other federally controlled substance or for amounts greater than 30 grams of marijuana will expose you to being placed in proceedings where your green card maybe taken away. However, as long as the drug or marijuana conviction was not for the sale or distribution for compensation there is a waiver that can be sought after by requesting it before an immigration judge.

So, if my conviction was just for possession of marijuana a judge will forgive my conviction and allow me to keep my green card?

Potentially yes, but the waiver is not granted automatically. You will need to make a formal application before the judge where you must include evidence showing remorse for your act, and rehabilitation to convince the judge that you will not commit the act again. Furthermore, it is not required, but would be helpful to present evidence and explanation of any hardship you or any US citizen or legal permanent resident family member such as a spouse, parent or son or daughter may suffer if you have your green card taken away and are deported.

However, to qualify you will need to prove that you have been present in the US for at least seven years after you received your green card or after you were admitted legally into the US and have maintained your green card for at least 5 years before applying for the waiver.

When basing your waiver on rehabilitation, you are always attempting to convince USCIS that you will no reoffend and that you will be or have been a productive and law abiding individual since your conviction to convince USCIS that your approval will not be contrary to the national interest. Some examples on how to demonstrate hardship and/or dependence include the spouse and children of a household depending solely on your income; your assistance of an older parent to attend medical visits as well as paying for medication or scenarios where the family member requires care  because of some sort of disability. There is no set amount of evidence that will automatically lead to an approval, so the case depends at times on creativity and hard work in detailing and explaining the hardship using financial and medical related evidence in combination with personal statements and legal argument to effectively present a case with an increased chance for approval.

I entered on a visa 10 years ago and have had my green card for 4 years, will I still qualify?

Potentially yes, but there are still some issues that have to be resolved in your case before we can know for sure you will qualify for cancellation of removal. Since you have only had your green card for 4 years, this raises the issue of whether you will qualify for cancellation since you have had your green card for less than 5 years. You appear to meet the 7-year requirement since you were legally admitted 10 years ago and you conviction occurred past the 7 year mark after the legal admission. However, you don’t appear to have the actual 5 years of green card status.

Although not having the required 5 years maybe potentially fatal to your cancellation case, in your situation there are two potential manners to handle this situation. If you are not in removal proceedings, make sure not to expose yourself to Immigration authorities for at least one more year. Typically, exposure to being detained by immigration authorities can occur in one of two ways. You are convicted of a crime that makes you deportable, like possessing drugs or committing some other deportable offenses. See our discussion on deportable offenses that can place your green card at risk by clicking here. Obviously, you never want to get into trouble with the police, but you especially don’t want to get into trouble before meeting the five year green card requirement for cancellation. Second, fortunately, these cases take months if not years to proceed to a final hearing. If you have about one year left to meet the 5 year requirement, an experienced attorney can work to seek more time in your case to eventually lead to meeting the 5 year requirement before the final hearing allowing you to then qualify for the waiver.

If for some reason it doesn’t appear you will be able to meet the 5 year requirement there maybe a couple of options an immigration attorney can still look at. Although many states have marijuana specific crimes in the books, a situation where a person is accused of possessing marijuana does not always result in a marijuana conviction. With the guidance of an attorney with knowledge of immigration conviction consequences, an individual charged with marijuana possession may be aided by the attorney to plead to a state drug statute where the identity of the drug is not revealed. This strategy works in states where the state drug statutes list more drugs as being illegal than what the federal drug list contains. In such a scenario, the noncitizen will not be placed in removal proceedings because an inconclusive record of conviction with respect to the identity of the drug will not allow the government to meet their burden in proving that you are deportable.

What if I have my conviction expunged?

An expungement is typically a legal process where the law allows a state court judge to enter an order of dismissal of the conviction after the convicted individual has shown rehabilitation and good behavior while on probation or some form of conditional release. Expungement is not given any recognition by the immigration law, so a prior conviction even where there is a subsequent expungement will still be treated as a conviction for immigration law purposes.

The only scenario where an expungement of a drug related conviction is beneficial to avoiding an immigration consequence is limited to a select few states in the United States which are under the authority known as the jurisdiction of the US Court of Appeals for the Ninth Circuit if the conviction for simple possession happened before July 14,  2011 and the conviction was later dismissed or can have it dismissed. Such a conviction will not be considered a conviction for immigration purposes meaning that the legal permanent resident will not be subject to removal proceedings. This will only work for minor offenses such as only possessing the drug. Furthermore, although the law is clear in the Ninth Circuit it is either not addressed or not supported by other US Appeals Courts in other regions in the United States, so this is a very limited option.

Since my conviction happened after 2011 and I don’t live in a state within the Ninth Circuit, is there any other available strategy or option?

Potentially, a process known as post-conviction relief maybe an option worth considering. Post-conviction relief is a process where you request a court with authority to hear cases seeking to have a past judgement of conviction vacated/dismissed based on a substantial error or defect committed in the original criminal matter. Most cases in this scenario come from mis advice from a criminal defense attorney where the attorney failed to properly advise a client of the immigration consequences of pleading guilty.

If this request is granted, this type of relief serves to dismiss your conviction, creating a scenario where you would no longer be subject to being placed in removal proceedings to have your green card taken away. However, note that although this option seems ideal there are some important issues to consider before pursing this option. First, this option may not be available in states where you have a limited time to make the request after conviction and sentence and your request was made past that limited time frame. Second, even if you are successful having your conviction dismissed, this does not mean you are free and clear from the original charge. Most often state prosecutors in cases where post-conviction relief was granted will be more determined to continue prosecution against you where they may now be less inclined to enter into an agreement in your favor. This more aggressive posture by a prosecutor can potentially lead to the same conviction, but with a harsher sentence than what you received from the original conviction. Therefore, if this option is to be considered, the advice and representation of an experienced attorney is essentially required to advise you if this option is not only possible where you reside, but also confirm whether this option will do more harm than good in your situation.

Bottom line, whatever the option you are considering, an experienced immigration attorney will be able to advise of which option maybe available for your case.

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